Yappo v The State of Western Australia

Yappo was convicted, following a trial, on three counts of sexual penetration without consent. Yappo appealed against his conviction. The appeal centred on the prosecutor's suggestion during the closing address that the appellant had invented an exculpatory account given during a police interview. The prosecutor did not call two witnesses at trial who had each claimed to have heard the appellant give a similar account on the day of the alleged offending. The appeal questioned whether the prosecutor's submission that the appellant had cleverly constructed the account in the police interview to meet the evidence against him constituted a miscarriage of justice, given that the prosecutor had chosen not to adduce the evidence of the two witnesses whose statements tended to contradict that submission.

The court considered the rule against hearsay and exceptions, specifically admissions against interest. The court had to determine whether the evidence of the two persons who claimed to have heard the appellant's account was admissible at trial. The court also considered whether the evidence was admissible in the State case as containing an admission against interest and whether the prosecutor had made an allegation of recent invention. Finally, the court examined whether the evidence was admissible in the defence case as rebutting the allegation of recent invention.

The court concluded that the prosecutor's conduct did not occasion a miscarriage of justice. The court found that the evidence of the two witnesses was not admissible as it did not fall within the admission against interest exception to the hearsay rule. The court held that the evidence was not admissible as it was not relevant to the issue of whether the appellant had recently invented the account given in the police interview. The court dismissed the appeal, affirming the conviction on all three counts of sexual penetration without consent.